Get with it, America! Due Process is so over. Just ask Michael Chertoff, forward-thinking chief of the Department of Homeland Security. "It's not like the 20th century," he told ABC News on Sunday, "where you had time to get warrants."
Don't blame Chertoff for getting caught up in the mod-mania; ever since 9/11—brought to you by futuristic tools of terror known as box cutters—anti-terror legislation has been sold in the breathless parlance of the Extreme Makeover. Pitches for President Bush's secret war powers have always sounded a little like the cover of Lucky (150 New Can't-Fail Executive Powers for the WOT! Inside: Secret Wiretapping Must-Haves!), the quaint concerns of civil libertarians deemed hopelessly demode in pursuit of a sleeker state. But like the fashion mags, legislators are just repackaging old standards for new eyes. Nowhere is this more obvious than the current obsession with government secrecy.
Take the latest in anti-leak legislation, dubbed the Official Secrets Act after the infamous British statute. On August 2nd, Sen. Kit Bond (R-Mo.) introduced what he calls an "appropriate and modern tool" for fighting the War on Terror, a bill now in the Judiciary Committee and supported by such diehard fans of modernity as Sen. Rick Santorum (R-Penn). How modern is Bond's bill? Word for word, it's the same act then-President Clinton vetoed in 2000.
If passed, the Act would criminalize the disclosure of classified information by current and former government employees, encouraging any would-be whistleblower to first picture himself in an orange jumpsuit. Right now, prosecutors have to prove leakers passed along information that has or will harm national security. That's hard, and, Bond informs us, utterly passé. As he explained in a statement introducing the legislation, leaks have "threatened to erode the trust and confidence of the American people." Bond's response to America's eroded trust is not to change the government that taps their phones without FISA authorization (old), but stop the leaks that let them know about it (new!).
As William Weaver, government professor at the University of Texas at El Paso, has pointed out, government prosecutors will apply the legislation only to leaked information the administration deems embarrassing or disadvantageous. Leaks that support the administration's position—however false or ultimately harmful—will continue to flow freely from officials to journalists. Misleading accounts of WMD build-up? A free press at work! Reports of secret prisons outside the rule of law? Call in the prosecutors.
The Bush administration, too, is looking backward as it forges ahead with information control. Two employees of the American Israel Public Affairs Committee (AIPAC) stand charged with espionage, though neither Steven J. Rosen nor Keith Weissman were government employees when they allegedly conveyed state secrets (courtesy of a Pentagon analyst) to a Israel. Last week, citing national security concerns, U.S. District Judge T.S. Ellis III refused to dismiss the indictment.
"We are a bit in new, uncharted waters," the judge told the court in a March 24 hearing. To recap: The Espionage Act helped censor dozens of newspapers when it was passed in 1917, paved the way for the speech-killing Sedition Act, and sent hundreds to prison. The statute has been given a new spin, but its larger implications are hardly a secret to anyone with a passing knowledge of American history or, for that matter, Wikipedia.
The case, if decided in favor of the government, will have much broader reach than Bond's bill; while the legislation would target those government employees who leak information, the government's interpretation of the Espionage Act targets those who receive it. In the words of the defendents' lawyers, the law as interpreted this way would "allow for the punishment of any private citizen who obtains classified information—regardless of how or why—and then discloses it to another private citizen." Everyone will have implicitly signed a nondisclosure agreement. As Chertoff might tell us: It's not like the 20th century, where you had time for paperwork.
The federal government's bright new ideas for a new kind of war come off, on closer look, like tired knock-offs, hastily refashioned for a new audience. Most are based on a false choice between national security and free speech: For all their protestation, those who rail against the New York Times and Washington Post for recent investigative work have never been able to explain how that work has made us less secure. But that's very much the point. In the made-over world of hyped-up government secrecy, explanations are no longer necessary.